Citation Nr: 0005019
Decision Date: 02/25/00 Archive Date: 09/08/00
DOCKET NO. 97-34 021A DATE FEB 25, 2000
THE ISSUE
Whether a January 1989 decision of the Board of Veterans' Appeals
(Board), which denied service connection for a chronic skin
disorder (including psoriasis and a fungus infection) and
rheumatoid/psoriatic arthritis, should be revised or reversed on
the grounds of clear and unmistakable error (CUE).
REPRESENTATION
Moving Party Represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
Kimberly E. Harrison Osborne, Counsel
INTRODUCTION
The veteran had active military service from September 1968 to
April 1971.
This matter is before the Board as an original action on a motion
of the veteran alleging CUE in a January 1989 Board decision which
denied service connection for a chronic skin disorder (including
psoriasis and a fungus infection) and rheumatoid/psoriatic
arthritis.
The Board notes that in the January 1989 decision, the Board also
denied service connection for residuals of Agent Orange exposure,
including chloracne. The veteran has not alleged CUE with respect
to this issue, and thus the Board will not address such issue. The
present Board decision will only address CUE as it pertains to the
Board's January 1989 denial of service connection for a chronic
skin disorder (including psoriasis and a fungus infection) and
rheumatoid/psoriatic arthritis.
FINDINGS OF FACT
1. In January 1989, the Board denied service connection for a
chronic skin disorder (including psoriasis and a fungus infection)
and also denied service connection for rheumatoid/psoriatic
arthritis.
2. The January 1989 Board decision was reasonable supported by the
evidence then of record and prevailing legal authority; the
decision was not undebatably erroneous.
CONCLUSION OF LAW
The January 1989 Board decision, which denied service connection
for a chronic skin disorder (including psoriasis and a fungus
infection) and rheumatoid/psoriatic
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arthritis, was not based on CUE. 38 U.S.C.A. 7111 (West 1991 &
Supp. 1999); 38 C.F.R. 20.1403 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
The veteran had active military service from September 1968 to
April 1971. Service medical records show that in December 1969 he
was evaluated for a well- circumscribed erythematous plaque-like
area across each side of his penis, with associated small papules.
The impression was rule out herpes progenitalis. In January 1970,
he was referred to the dermatology clinic, with the provisional
diagnosis of questionable ringworm. When seen that month in the
dermatology clinic, he was noted to have weeping, erythematous, and
crusted eruptions on his penis. Fungus cultures revealed no growth.
The impression was Monilia versus nonspecific balanitis. The
examiner doubted that findings were indicative of dermatophytosis,
psoriasis, lichen planus, or atopic dermatitis. When treated one
week later, it was reported that balanitis was slowly responding to
medication. A record of follow-up treatment in February 1970 shows
that "eczematoid dermatitis" on the penis was slowly improving. An
April 1971 discharge examination revealed he had a normal
musculoskeletal and skin examination.
Post-service treatment reports from J.V. Merrifield, M.D. show that
the veteran was seen in June 1972 for a rash on his upper thighs
and scrotum. In July 1973, he was treated for a sunburn. In
December 1973, he had scalp complaints. In April 1974, he was noted
to have a possible fungus of the feet. In May 1975, he was treated
for sun poisoning. In October 1975, he received treatment
pertaining to the great toenails. An April 1976 medical note shows
the veteran was given a general medical examination and a checkup
for arthritis, and the rheumatoid factor was negative. In December
1976, he was seen for possible sebaceous cysts of the chest. He had
both great toenails removed in September 1977.
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A November 1979 VA examination revealed the veteran gave a history
of having an occasional penile rash. Physical examination of the
skin revealed residuals of acne of the face and back, as well as
onychomycosis of both great toes.
In January 1983, he was treated at a VA clinic for an acute/chronic
fungus infection of the toes and fingernail beds. A September 1983
medical report reveals the veteran complained of fungus of the
hands and feet. Physical examination revealed pain and swelling in
the distal interphalangeal joints in the hands and feet. The
diagnosis was psoriatic arthritis and fungus of the nails.
An April 1984 VA outpatient treatment report notes scarring and
inflammatory papules on the back, which reportedly were present for
many years. Dystrophic toenails and fingernails, as well as redness
and edema were noted around the toenails. The impression was
candidiasis, questionable psoriasis, and acne. The report reveals
the veteran complained of swelling of his fingers. The examiner
reported the veteran's condition was suggestive of psoriatic
arthritis. A December 1984 VA outpatient treatment report reveals
a diagnosis of psoriatic arthritis and fungal nails.
Outpatient treatment reports from 1985 to 1988 show a diagnosis of
psoriatic arthritis and rheumatoid arthritis. Outpatient treatment
reports from July 1985 to September 1985 note the veteran was
treated for psoriatic/rheumatoid arthritis.
In an April 1986 letter, Dr. Merrifield stated the veteran was a
patient of his since early 1972. He stated that shortly after the
veteran's return from Vietnam he began treating the veteran for
marked onycholysis of the toenails. He stated the veteran was
subsequently seen by Dr. Byrd and other rheumatologists and was
diagnosed as having psoriatic arthritis. He reported the veteran
was getting marked deformity of most of the joints of his fingers
and toes secondary to psoriatic arthritis. Dr. Merrifield reported
the veteran was never treated for onycholysis or psoriasis of his
nails prior to his Vietnam experience.
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A November 1986 special Agent Orange protocol examination revealed
an assessment of history of a positive rheumatic arthritis factor
and positive psoriatic arthritis.
During a March 1987 RO hearing, the veteran alleged he had a skin
disorder and arthritis which were related to service.
In a May 1987 letter, Dr. Merrifield stated he had treated the
veteran since November 1971 for persistent nail infections which
began during his tour of duty in Vietnam. He stated he initially
diagnosed onycholysis in November 1971 and that the diagnosis was
changed to psoriasis of the nails. He reported the veteran
subsequently developed psoriatic arthritis. He stated he trusted
the information he provided would help in establishing the validity
of the veteran's claim that his present medical problems stemmed
from a condition first presenting itself during his tour of duty in
Vietnam.
In a July 1987 letter, Dr. Merrifield stated the veteran continued
to have progression of his psoriatic arthritis. Dr. Merrifield
stated he was convinced the veteran's current condition of
psoriatic arthritis stemmed from a dermatologic condition of
psoriasis which first presented as a penile rash during his tour in
Vietnam. He stated the veteran's arthritis was a sequela of the
psoriasis.
Lay statements dated in 1988 are to the effect that the veteran
currently had a skin and nail disorder which he did not have prior
to entering military service. Also submitted was a statement from
his pastor in which he attested to the veteran's good character.
In March 1988, the veteran received follow-up treatment for
rheumatoid arthritis and psoriatic arthritis.
In an April 1988 letter, Dr. Merrifield stated the veteran
continued to have a progression of psoriatic arthritis. He stated
he was a physician in Vietnam as a
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battalion aid surgeon and he felt the veteran's present disease
stemmed from a service connected illness which he encountered while
serving in Vietnam.
The veteran submitted a copy of a portion of a medical text
indicating that balanitis could be caused by psoriasis.
At a May 1988 Board hearing, the veteran and his sister reiterated
assertions made at his March 1987 RO hearing.
In a June 1988 letter, Dr. Merrifield reasserted his opinion with
respect to the veteran's psoriatic arthritis having its onset
during service.
In a June 1988 letter, Stephen K. Milroy, M.D. reported he first
treating the veteran in 1982 due to a several year history of
problems with his fingernails and toenails. He related that when
the veteran was seen in 1987, clinical findings were diagnostic of
psoriasis. Dr. Milroy noted a previous history of tinea unguium and
tinea pedis.
The above-summarized evidence was on file at the time of a January
1989 Board decision which denied claims of service connection for
a skin disorder (including psoriasis and a fungus infection) and
rheumatoid/psoriatic arthritis. The Board found that a skin
disorder treated in service and described as ringworm, herpes
progenitalis, balanitis, and eczematoid dermatitis was acute and
transitory and resolved without residual disability. The Board also
found that a chronic skin disorder, including psoriasis and a
fungal infection, was not present during service. The Board @er
found that rheumatoid/ psoriatic arthritis was not present during
or within one year after service. The Board noted that the
doctrinal of reasonable doubt had been considered but the facts in
the case were no so evenly balanced as to create such doubt.
In December 1997, the veteran's representative filed a motion
asserting CUE with respect to the January 1989 Board decision which
denied service connection for a skin disorder and
rheumatoid/psoriatic arthritis. The representative argued the 1989
decision was based on CUE because the Board misapplied the law on
presumptive
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service connection for arthritis and because the Board failed to
apply the reasonable doubt doctrine. The representative argued that
evidence of record established that arthritis was manifest to a
compensable degree prior to April 1972 (one year after separation
from service) even though it was not diagnosed until a later date.
The representative related that the veteran's private physician
stated that the veteran had been his patient since November 1971
and that he was treated for persistent nail infections and joint
pains which started during his tour of duty in Vietnam. The
representative noted a diagnosis of psoriatic arthritis after
service. He argued that the joint pain the veteran suffered after
separation from service constituted an exacerbation of the
arthritis. The representative further argued the fact that
psoriatic arthritis was not diagnosed within the one year period
was irrelevant because the veteran's private doctor offered a
medical opinion clearly demonstrating the condition the veteran had
in 1971 was the same condition as was later determined to be
psoriatic. The representative concluded that since the Board had
evidence before it showing psoriatic arthritis was present with-in
the year after service, fulfilling the requirement of 38 C.F.R.
3.307 and 3.309 (1988), its failure to award presumptive service
connection pursuant to those regulations constituted CUE. The
representative alleged the Board impermissibly substituted its own
medical opinion for that contained in the medical evidence of
record by reaching medical conclusions unsupported by medical
evidence of record.
Moreover, the representative claimed that in its 1989 decision the
Board misapplied the reasonable doubt provisions because at a
minimum the evidence regarding the service origin of the veteran's
psoriasis and psoriatic arthritis was approximately balanced. The
representative stated that at the time of the Board's decision the
evidence supporting a finding of in-service incurrence of his
psoriatic arthritis consisted of the veteran's testimony, service
medical records reflecting in-service treatment for a lesion on his
penis, and Dr. Merrifield's statements describing his treatment of
the veteran and linking his psoriasis and psoriatic arthritis to
his in- service penile lesion. The representative said the evidence
unfavorable to the veteran's claims consisted of in-service
diagnoses other than psoriasis for his penile lesion, and his
separation.examination report failing to note any skin condition.
The representative concluded that an analysis of the evidence
demonstrates the evidence
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was at least approximately balance and required the Board to award
the veteran service connection pursuant to the reasonable doubt
provisions of 38 U.S.C.A. 3007(b) (1988) and 38 C.F.R. 3.102
(1988), and that failure to do so constituted CUE.
II. Analysis
A Board decision is subject to revision on the grounds of CUE and
will be reversed or revised if evidence establishes such error. 38
U.S.C.A. 7111 (a) (West 1991 & Supp. 1999). Motions for review of
Board decisions on the grounds of CUE are adjudicated pursuant to
recently published regulations. 38 C.F.R. 20.1400-1411 (1999).
According to the regulations, CUE is a very specific and rare kind
of error. It is the kind of error, of fact or of law, that when
called to the attention of later reviewers compels the conclusion,
to which reasonable minds could not differ, that the result would
have been manifestly different but for the error. Generally, CUE is
present when either the correct facts, as they were known at the
time, were not before the Board, or the statutory and regulatory
provisions extant at the time were incorrectly applied. 38 C.F.R.
20.1403 (a). Review for CUE in a prior Board decision must be based
on the record and the law that existed when the decision was made.
38 C.F.R. 20.1403(b).
The regulations further provide that to warrant revision of a Board
decision on the grounds of CUE, there must have been an error in
the Board's adjudication of the appeal which, had it not been made,
would have manifestly changed the outcome when it was made. If it
is not absolutely clear that a different result would have ensued,
the error complained of cannot be CUE. 38 C.F.R. 20.1403(c).
Examples of situations that are not CUE include the following: (1)
changed diagnosis (a new diagnosis that "corrects" an earlier
diagnosis considered in a Board decision); (2) duty to assist (VA
failure to fulfill the duty to assist); and (3) evaluation of
evidence (a disagreement as to how the facts were weighed or
evaluated). 38 C.F.R. 20.1403(d). Moreover, CUE does not include
the otherwise correct application of a statute or regulation where,
subsequent to the Board decision challenged, there has
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been a change in the interpretation of the statute or regulation.
38 C.F.R. 20.1403(e).
It should be noted that the above-cited regulatory authority was
published with the specific intent to codify the current
requirements for a viable claim of CUE as set forth in the case law
of the United States Court of Appeals for Veterans Claims, as well
as the United States Court of Appeals for the Federal Circuit. In
brief, the court cases indicate that CUE is a very specific and
rare kind of error; it is the kind of effort of fact or law, that
when called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that the
result would have been manifestly different but for the error. To
find CUE, the correct facts, as they were known at the time, must
not have been before the adjudicator or the law in effect at that
time was incorrectly applied; the error must be undebatable and of
a sort which, had it not been made, would have manifestly changed
the outcome at the time it was made; and the determination of CUE
must be based on the record and law that existed at the time of the
prior adjudication. Allegations that previous adjudications have
improperly weighed and evaluated the evidence can never rise to the
stringent definition of CUE. Similarly, the VA's breach of its duty
to assist cannot form a basis for a claim of CUE. See, e.g.,
Baldwin v. West, 13 Vet.App. 1 (1999); Bustos v. West, 179 F. 3d
1378 (Fed.Cir. 1999); Link v. West, 12 Vet.App. 39 (1998); Caffrey
v. Brown, 6 Vet. App. 377 (1994); Damrel v. Brown, 6 Vet. App. 242
(1994); Fugo v. Brown, 6 Vet.App. 40 (1993); Russell v. Principi,
3 Vet. App. 310 (1992).
The pertinent laws and regulations in effect at the time of the
1989 Board decision provided that service connection may be granted
for disability resulting from disease or injury that was incurred
in or aggravated by active service. 38 U.S.C. 310. Certain chronic
diseases, including arthritis, which become manifest to a
compensable degree within the year after service, will be
rebuttably presumed to have been incurred in service. 38 U.S.C.
301, 312, 313; 38 C.F.R. 3.307, 3.309. When, after consideration of
all evidence and material of record in a case before the VA with
respect to benefits under laws administered by, the VA, there is an
approximate balance of positive and negative evidence regarding the
merits of an
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issue material to the determination of the matter, the benefit of
the doubt in resolving each such issue shall be given to the
claimant. 38 U.S.C. 3007; 38 C.F.R. 3.102.
The veteran contends that the Board, in its 1989 decision,
committed CUE in denying claims of service connection for a chronic
skin disorder including psoriasis and fungus infection) and
rheumatoid/psoriatic arthritis. First, the veteran alleges error in
that the Board misapplied or failed to apply 38 C.F.R. 3.307 and
3.309 on presumptive service connection, as to the claim of service
connection for arthritis. Second, the veteran allege that the Board
did not property apply the reasonable doubt provision. He claims
there was an approximate balance of positive and negative evidence
pertaining to the claims of service connection for a skin disorder
and arthritis. The third argument is that the Board impermissibly
substituted its own medical opinion for that contained in the
medical evidence of record by reaching medical conclusions
unsupported by medical evidence of record.
Concerning the veteran's first argument, in January 1989 the Board
determined that based on the evidence, arthritis (psoriatic and
rheumatoid) was not present within a year after discharge from
service, as required for a presumption of service incurrence. The
veteran's argument that the evidence on file supported a finding of
arthritis within one year after service speaks to how the Board
evaluated and weighed the evidence and such does not meet the
stringent definition of CUE.
Turning to the second argument, the veteran argues the Board
misapplied the reasonable doubt provisions because at a minimum the
evidence regarding the service origin of the veteran's skin and
arthritis conditions was approximately balanced. This argument also
speaks directly to how the Board weighed the evidence. As
previously stated, such argument can never amount to CUE.
With respect to the third argument, the veteran argues the Board
impermissibly substituted its own medical opinion for that
contained in the medical evidence of record by reaching medical
conclusions unsupported by medical evidence of record. The argument
concerns the weight the Board applied to the various pieces of
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medical and other evidence in the claims file at the time of the
decision. Again, such argument does not amount to CUE.
The correct facts were before the Board in 1989, and the file
showed that the Board properly considered the evidence and then-
prevailing legal authority when making its 1989 decision. Based on
the record and law in effect at the time of the 1989 Board
decision,, it cannot now be said that all reasonable adjudicators
would have reached a different result or that there was undebatable
error in denying the claims. Thus, the Board now concludes that the
January 1989 Board decision, which denied service connection for a
skin disorder (including psoriasis and a fungus infection) and
rheumatoid/psoriatic arthritis, was not based on CUE, and the
motion to revise or reverse that decision must be denied.
ORDER
The veteran's CUE motion, to revise or reverse the January 1989
Board decision which denied service connection for a chronic skin
disorder (including psoriasis and a fungus infection) and
rheumatoid/psoriatic arthritis, is denied.
L. W. TOBIN
Member, Board of Veterans' Appeals